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Proving discrimination

This page deals with limited aspects of the evidence required to show there has been discrimination and that one has a disability.

Summary

Introduction, and further resources

I am not going to try and tell anyone how to run a tribunal or court case or how to prove a case (I have no experience of it), though I can make a few points on this page. See Sources of help and advice, and links from the following more specific pages:

Burden of proof

Balance of probabilities

Subject to the shift in burden of proof (below), it is for the claimant to prove the facts on which s/he relies, in particular to prove that s/he has a disability (if that is disputed) and that there has been discrimination.

Proof just needs be on a 'balance of probablities'. In other words, the tribunal will decide whether it is more likely than not that the claimant's version of the facts is true.

So evidence does not have to be conclusive. Often there will not be direct evidence as to whether an employer discriminated. The tribunal may make inferences from the facts that are proved or not disputed. Cases may turn on which party's evidence the tribunal believes. The employer's internal emails and documents (below) may also be useful evidence.

As regards the objective justification defence, the burden is on the employer or service provider etc to show the defence applies.

Shift in burden of proof

There is a rule that the burden of proof shifts to the employer or service provider etc if the claimant makes out a prima facie case. For the precise wording of the rule, which is important, see EqA s.136. There are numerous cases on it which I do not go into here. It is not an easy area. There is a (2012) outline and critique by Sean Jones QC on the Range of Reasonable Responses blog.

It is often said (based on the Madarassy case below) that simply showing there has been a difference in treatment between eg. a disabled and non-disabled person is not enough to shift the burden of proof - that 'something more' is needed.

The landmark Court of Appeal decision of Igen v Wong in February 2005 gave guidance on what the provision means. The Court of Appeal gave further guidance in Madarassy v Nomura Ltd (link to bailii.org), 2007. There are also later cases, but - as I say - I am not going to discuss the detail.

"...it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other."
Hewage v Grampian Health Board (pdf, link to supremecourt.gov.uk), Supreme Court, 2012

The shift in burden of proof does not apply to showing the claimant has a 'disability'. The burden remains on the claimant to show this, on a balance of probabilities.

Prohibited enquiries on health or disability

Where there is a claim that an employer is liable for direct discrimation, the legislation specifically says that the burden of proof shifts under s.136 if the employer has asked a job applicant about health or disability so as to breach s.60 EqA. Here, the claimant need not show a prima facie case. The burden of proof shifts if an individual claims that conduct by the employer (e.g. turning him down for a job) in reliance on information given in response to a prohibited enquiry is direct discrimination. See Pre-employment enquiries - that page includes an example of the shift in burden of proof, under the heading 'Enforcement'.

Reasonable adjustment claims may be easier

Whilst the rules on burden of proof apply generally, they are most likely to be important where the issue is why a person was treated less favourably - was it because of something to do with their disability that they were turned down for a job or promotion, for example.

However, showing the reason why one was turned down is not a precondition to a claim for reasonable adjustments. It may be easier for a claimant to show that an employer's practice etc put him or her at a substantial disadvantage, and that there was a breach of the reasonable adjustment duty.

Asking questions

Asking questions can be very useful to help a claimant decide whether it is worth bringing a case in the first place, and if so how to formulate and present a case most effectively. As well as helping formulate a case if brought, it can help avoid unnecessary litigation. A claimant may find from the responses given that their case is weak, so no claim is made or the claim is withdrawn. Alternatively, the process of answering the questions may bring home to an employer etc that there is a serious case against them, and encourage them to negotiate a resolution, again avoiding litigation.

For discrimination which happened before 6th April 2014 there used to be a formal 'questions procedure' which a potential claimant could use even before proceedings were started. However this was repealed by the Coalition government. The procedure involved sending a form to the employer or service provider etc asking relevant questions. If the employer etc unreasonably failed to reply within 8 weeks or its reply is evasive or equivocal, the tribunal or court could draw inferences from that.

Subject access request under the Data Protection Act

Claimants sometimes use their statutory rights to make a 'Subject access reqest' for information under the Data Protection Act - or, where the information is held by a public body, an FOI request under the Freedom of Information Act. See for example Employee data sought in connection with potential tribunal cases must generally be handed over, says ICO (link to outlaw.com).

In the context of claims against service providers, Doug Paulley's 'DART' (Disability Attitude Re-adjustment Tool) suggests in Part 8 putting in a Subject access request at the same time as a Letter before action.

Asking questions without a legal right

Even after the abolition of the questions procedure, claimants can write to the employer (or service provider etc) asking questions, and a tribunal or court may well be willing to draw inferences from failure to respond. ACAS and the government have issued new guidance on asking questions:

34. In the absence of section 138, a complainant may still raise questions of the respondent. A court or tribunal could still conclude adverse inferences from a refusal to respond or from evasive answers, despite the lack of any provision for a statutory questionnaire.
Enterprise and Regulatory Reform Bill: Supplementary notes explaining new clauses (Word doc, link to archived discuss.bis.gov.uk). Linked from archive of discuss.bis.gov.uk/enterprise-bill/latest-updates/, 9th October 2012.

We will replace the statutory provisions, including the forms for questions and answers and the eight week time limit for businesses to respond, with an informal approach. This new approach will be set out in guidance produced by Acas and will include advice on how individuals can ask questions and why employers and service providers should respond. This will enable business to better challenge any unreasonable requests for information which they have told us they currently experience with the statutory provisions. A non-legislative approach will be simpler and fairer for all.
Employment Law 2013: Progress on reform (link to gov.uk), March 2013

Seeing relevant documents - after proceedings have started

Once proceedings are instituted, the claimant may be able to seek discovery and inspection of relevant documents (unless privileged), e.g. notes of interviews, and an employer's internal and external emails.

Expert evidence

It is for the claimant to show on a balance of probabilities that the stammer meets the legal test of being a 'disability', if the employer does not accept this. Expert evidence can be useful here, eg from a speech and language therapist (SLT). Expert evidence is not always necessary though - the Presidential Guidance on General Case Management (pdf), 2014, on employment tribunals indicates:

11.1 A claimant may be able to provide much of the information required without medical reports. A claimant may be able to describe their impairment and its effects on their ability to carry out normal day to day activities...
The guidance goes on to consider use of expert evidence.

Expert evidence can, however, be useful to support a case. For example in Wakefield v HM Land Registry the SLT's report seems to have been important evidence of the effects of the stammer, particularly hidden effects. The tribunal in that case also used the report in its decision on the reasonable adjustment duty (though that aspect was overruled on appeal).

Whether or not the employer accepts that the claimant has a 'disability', expert evidence can be useful in showing that the person who stammers was put at a 'substantial disadvantage' so as to trigger the reasonable adjustment duty (and possibly -- for some types of adjustment - whether the adjustment claimed is likely to be effective in alleviating the disadvantage). As mentioned above, the tribunal in Wakefield considered the SLT report in deciding what adjustments would be reasonable.

Of course, other evidence (not just expert evidence) can also be very important on these issues.

An example of a claimant showing his stammer was a disability without expert evidence is Shirlow v Translink (though the claim here failed because the tribunal decided there was no discrimination).

Specialist SLT

Speech and language therapists (SLTs) cover a broad range of different disorders, so it is desirable to have a speech and language therapist with a particular interest in stammering. There may be a charge to obtain a report.

Information on local SLTs, including those specialising in stammering, is available from the British Stammering Association helpline (link to stammering.org). Also City Lit (link to stammering.org) in London is a centre of excellence on adult stammering. For a private speech and language therapist, go to helpwithtalking.com, choose 'Advanced search' and select 'Stammering' to search for therapists with a specialty in it.

Expert evidence: Guidelines for employment tribunals

Guidelines on expert evidence were given by the Employment Appeal Tribunal in the De Keyser case in March 2001. (See also discussion in para 26-32 of GCHQ v Bacchus (link to bailii.org), 2012). For example, joint instruction of a single expert is generally preferred. It may be possible to have the Employment Tribunal pay the costs of a medical report ordered by it.

Links on expert evidence:

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Last updated 16th February 2017